IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 19, 2015 Session

STATE OF TENNESSEE v. JORDAN THOMAS PETERS

Appeal from the Criminal Court for Sullivan County

No. S58069 Robert H. Montgomery, Jr., Judge

No. E2014-02322-CCA-R3-CD – Filed November 5, 2015

CAMILLE R. MCMULLEN, J., concurring in result only.

Given the clear and apparently controlling case law concerning convictions 

enhanced pursuant to the Drug Free School Zone Act (the Act), I must reluctantly concur. 

However, I write separately to set forth my ever increasing concern regarding 

enhancement of convictions under the Act.

1

 

A person convicted of a drug related offense that occurs “on the grounds or 

facilities of any school or within one thousand feet (1,000‟) of the real property that 

comprises a public or private elementary school, middle school, secondary school, 

preschool, child care agency, or public library, recreational center or park shall be 

punished one (1) classification higher than is provided . . . for such violation.” T.C.A. §§

39-17-417, -432 (2010). Here, the Defendant was convicted of delivery of psilocin and 

delivery of psilocin within 1000‟ feet of an elementary school. Delivery of psilocin, a 

Schedule I controlled substance, is a Class B felony with a sentence range of eight to 

fifteen years. Delivery of psilocin within 1000‟ feet of an elementary school elevated the 

Defendant‟s potential punishment from a Class B felony to a Class A felony with a 

sentence range of fifteen to twenty-five years. Defendants sentenced under the Act to the 

minimum term in their sentencing range, as in this case, “will serve literally 100% of 

 

1

The Sentencing Project has noted that drug-free zone laws, originating as far back as 1970, are 

among the most long-standing sentencing policies in America‟s war on drugs. The report evaluated the 

effectiveness of state laws over time and found widespread problems. Consequently, at least seven states, 

including Connecticut, Delaware, Indiana, Kentucky, Massachusetts, New Jersey, and South Carolina 

reformed their drug-free zone laws. Nicole D. Porter & Tyler Clemons, Drug-Free Zone Laws: An 

Overview of State Policies, The Sentencing Project (Dec. 2013), available at http://sentencingproject.org/

doc/publications/sen_Drug-FreeZoneLaws.pdf; see also Jordan T. Smith, Equal Protection Under the 

Law? Examining Tennessee‟s Drug Free School Zone Act (May 2012) (unpublished honors thesis 

project, University of Tennessee) (on file with the University of Tennessee), available at http://trace.tenne

ssee.edu/utk_chanhonoproj/1537.
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their sentences,” without the benefit of parole or sentence reduction credits. See Davis v. 

State, 313 S.W.3d 751, 763 (Tenn. 2010); State v. Smith, 48 S.W.3d 159, 173 (Tenn.

Crim. App. 2000) (holding that the Drug-Free School Zone Act necessarily “precludes 

sentence reduction credits, parole, or early release due to overcrowding”). Finally, while 

the Act was created by the legislature as a sentence enhancement, it is framed as a 

separate crime because the facts supporting the enhancement must be presented in the 

indictment and to the jury at trial to determine if the proof supports the enhancement 

beyond a reasonable doubt.

It is also important to point out that this court has repeatedly rejected the following 

challenges to the Act, see State v. Jenkins, 15 S.W.3d 914, 918 (Tenn. Crim. App. 1999) 

(holding the Act was not “unconstitutionally vague” and rejecting argument that the Act 

did not apply beyond regular school hours); Smith, 48 S.W.3d at 165, 171-73 (holding 

that the Act was not unconstitutionally vague and that sixty-year sentence was not cruel 

and unusual punishment); State v. Lockhart, No. M2013-01275-CCA-R3-CD, 2015 WL 

5244672, at *42 (Tenn. Crim. App. Sept. 8, 2015) (rejecting argument that “simply 

traveling through a school zone is not enough to apply the provisions of the Act”); State 

v. Jordan Peters, No. E2012-02135-CCA-R3CD, 2014 WL 50795, at *8 (Tenn. Crim. 

App. Jan. 7, 2014); State v. James Alfred Reed, Jr., No. E2010-01138-CCA-R3-CD, 

2011 WL 2766766, at *6 (Tenn. Crim. App. July 18, 2011) (rejecting argument that the

Act did not apply when offense occurred at night and during the summer when school 

was not in session).

In this case, the Defendant was twenty years old at the time of the offense and had 

no previous criminal history. He received a mandatory minimum sentence of fifteen 

years to be served at 100%. This sentence was required under the Act because the 

Defendant sold a handful of psilocybin mushrooms2to his friend, a paid informant, at a 

gas station located within 1000‟ feet of an elementary school.

3 As I understand his 

 

2

Psilocybin is a naturally occurring psychedelic compound produced by more than 200 species of 

mushrooms, collectively known as psilocybin mushrooms. See Drug Enforcement Admin., U.S. Dep‟t of 

Justice, Drugs of Abuse: Hallucinogens 70 (2015 ed.), available at http://www.dea.gov/pr/multimedialibrary/publications/drug_of_abuse.pdf; see also Psilocybin mushrooms, Wikipedia.com, https://en. 

wikipedia.org/wiki/Psilocybin (last visited Oct. 29, 2015). While the street prices fluctuate, psilocybin 

mushrooms generally cost $20 for 1/8 ounce and $100 and $200 for an ounce. See Psilocybin/Psilocyn, 

Ctr. for Substance Abuse Research, http://www.cesar.umd.edu/cesar/drugs/psilocybin.asp (last visited 

Oct. 30, 2015). In the first transaction, the Defendant sold a single-use amount of mushrooms to the 

informant in exchange for $40. The amount sold in the second transaction was the equivalent of two 

doses, one for the informant and one for her husband.

3

The Defendant was indicted for the sale or delivery of psilocin, a class B felony (counts one and 

two) and the sale or delivery of psilocin within 1000 feet of a school zone (counts three and four). Counts 

one and three were dismissed. For counts two and four, he received concurrent terms of eight and fifteen 

years‟ incarceration respectively. 
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argument, the Defendant does not deny that he sold the mushrooms to his friend or that 

he did so on his own volition. Rather, he contends that he was lured to the location of 

the sale by the informant for purposes of triggering the increased penalties under the Act. 

Citing federal authority, but without much further elaboration, the Defendant invites this 

Court to adopt some form of sentencing entrapment or sentence manipulation:

Drug-free school zones can be accomplished by sustained 

enforcement in and around schools and by heightened sentencing for sales 

that take place at schools as a matter of prosecutorial policy. However, 

enforcement operations that lure traffickers to make cocaine into “crack” to 

deliver into school zones to create longer sentencing have been properly 

characterized by judges as “sentencing entrapment” and “sentencing 

manipulation” and are unjust and dishonest. See United States v. Jones, 18 

F.3d 1145, 1153 (4th Cir. 1994) (“[S]entencing manipulation [is] 

outrageous government conduct that offends due process.”); United States 

v. Barth, 990 F.2d 422, 424 (8th Cir. 1993) (“[S]entencing entrapment [is] 

outrageous conduct which overcomes the will of an individual predisposed 

only to dealing in small quantities for the purpose of increasing the amount 

of drugs and the resulting sentencing of the entrapped defendant.”).

Eric E. Sterling, The Sentencing Boomerang: Drug Prohibition Politics and Reform, 40 

Vill. L. Rev. 383, 427 n.167 (1995).

The concept of “luring” as described in the above cases generally refers to the 

practice of law enforcement or their agent/informants increasing the amount of drugs to 

meet a certain sentencing threshold as well as establishing the location of the transaction

in a drug free zone. The federal circuit courts vary in their definition of, and 

requirements for bringing successful claims of sentencing entrapment or manipulation. 

See Jessica A. Roth, The Anomaly of Entrapment, 91 Wash. U. L. Rev. 979, 1034 

(2014); Eda Katherine Tinto, Undercover Policing, Overstated Culpability, 34 Cardozo L. 

Rev. 1401 (2013) (thoroughly discussing concepts, cases, and impact of sentencing 

entrapment and manipulation). Basically, if it was shown at sentencing that law 

enforcement engaged in “outrageous conduct,” then the trial judge had the authority to

reduce the sentence. Unlike its federal counterpart, however, a trial court imposing 

sentence under the Act has no discretion to reduce the sentence below the mandatory 

minimum. The states that have adopted some form of sentencing entrapment have 

incorporated it into their drug free zone laws as an affirmative defense. See Bell v. State, 

881 N.E.2d 1080, 1087 (Ind. Ct. App. 2008) (reducing class A felony drug conviction to

class B felony drug conviction because defendant established he was in drug free zone 

only at the request or suggestion of an agent of a law enforcement officer). 
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Because it is a “strict liability” enhancement, I believe that a defendant is entitled 

to prove at trial that he was lured into the drug free school zone by law enforcement or 

their agent/informant. In other words, so long as it is supported by the proof, a defendant 

should be entitled to raise the defense of luring when facing a charge under the Act. 

Additionally, because the hybrid offense/enhancement is required to be presented to the 

jury, I believe that a jury is entitled to a specific instruction, separate and apart from 

entrapment, regarding the defense of luring. See e.g., United States v. Cortes, 757 F.3d 

850, 861 (9th Cir. 2014) (holding that drug types and quantities triggering higher 

statutory maximum sentences . . . are jury questions under Apprendi v. New Jersey . . . 

therefore [it] stands to reason that any defenses to those drug types and quantities must be 

submitted to the jury as well, when the proffered defense has the potential to change the 

statutory maximum or minimum sentences). I simply do not believe that the Tennessee 

legislature intended the scope of the Act to include drugs brought into the protected 

school zone by law enforcement‟s own design. This concept of luring, which commonly 

takes the form of an undercover sting operation, is inconsistent with the legislative intent 

of the Act and defeats the overall purpose of “creat[ing] a drug-free school zone to reduce 

the occurrence of illegal drug activity in and around school facilities in order to enhance 

the learning environment.” Smith, 48 S.W.3d at 168.

Aside from the issues identified in the majority opinion, the problem in this case,

as intimated by the trial court, is that the proof did not demonstrate that the Defendant 

was in fact lured to the gas station within the drug free zone. The informant testified that 

the Defendant selected the location. The Defendant testified that he told the informant 

that “[h]e had to run home and get [the mushrooms], and she said, „That‟s fine.‟ And [the 

Defendant] also told her [he] had to get gas. And she says, „Well, I‟m up here at the 

BP[.]‟” There was also testimony that the informant lived “point three miles” from the 

gas station. This proof neither raises the defense of luring nor supports an inference of 

the same. For these reasons, I reluctantly concur in results only. 

_________________________________ 

CAMILLE R. McMULLEN, JUDGE